Whether the lifetime supervised release condition prohibiting Kevin Carson from possessing or having under his control any matter that is pornographic/erotic is unconstitutionally vague and overbroad

QUESTION PRESENTED The United States Court of Appeals for the Eighth Circuit upheld a lifetime supervised release condition prohibiting Kevin Carson from possessing or having under his control “any matter that is United States v. Carson, 924 F.3d 467, 472 (8th Cir. 2019). The court summarily rejected Carson’s argument that the condition was unconstitutionally vague and overbroad. The material he is banned from possessing, however, is undoubtedly lawful material that includes great literature and works of art. But, given the vagaries of the terms employed by the sentencing court, upon his release from prison, Carson, and thousands of offenders subject to similar conditions, will not have fair warning as to what conduct will result in a return to confinement. Furthermore, broad prohibitions on the possession of pornography and erotica chill free speech that is protected under the First Amendment. The circuit courts are intractably divided as to whether broad prohibitions against possessing pornography and erotica are vague and overbroad. The Fifth, Sixth, and Eighth Circuits hold that supervised release conditions prohibiting the possession of pornography are not vague and overbroad. United States v. Phipps, 319 F.3d 177, 180 (Sth Cir. 2003); United States v. Zobel, 696 F.3d 558, 575-77 (6th Cir. 2012); United States v. Sebert, 899 F.3d 639, 641 (8th Cir. 2018); United i States v. Mefford, 711 F.3d 923, 926-28 (8th Cir. 2013). The Third, Seventh, and Ninth Circuits have held that such conditions of release are unconstitutional. United States v. Loy, 237 F.3d 251, 253-54 (3d Cir. 2001); United States v. Adkins, 743 F.3d 176, 193-94 (7th Cir. 2014); United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002). This Court should accept certiorari to resolve the circuit split among the Courts of Appeals. ii